democratic appointee

WASHINGTON — The Supreme Court said Monday it will decide on reversing a 90-year precedent that has protected independent agencies from direct control by the president.

The court’s conservative majority has already upheld President Trump’s firing of Democratic appointees at the National Labor Relations Board and Merit Systems Protection Board. And in a separate order on Monday, it upheld Trump’s removal of a Democratic appointee at the Federal Trade Commission.

Those orders signal the court is likely to rule for the president and that he has the full authority to fire officials at independent agencies, if Congress said they had fixed terms.

The only hint of doubt has focused on the Federal Reserve Board. In May, when the court upheld the firing of an NLRB official, it said it decision does not threaten the independence of Federal Reserve.

The court described it as “a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” Trump did not share that view. He threatened to fire Federal Reserve Chair Jerome Powell during the summer because he had not lowered interest rates.

And he is now seeking to fire Federal Reserve Governor Lisa Cook, a Biden appointee, based on the allegation she may have committed mortgage fraud when she took out two home loans in 2021.

Trump’s lawyers sent an emergency appeal to the Supreme Court last week seeking to have Cook removed now.

Long before Trump’s presidency, Chief Justice John G. Roberts had argued that the president has the constitutional power to control federal agencies and to hire or fire all officials who exercise significant executive authority.

But that view stands in conflict with what the court has said for more than a century. Since 1887, when Congress created the Interstate Commerce Commission to regulate railroad rates, lawmakers on Capitol Hill believed they had the authority to create independent boards and commissions.

Typically, the president would be authorized appoint officials who would serve a fixed term set by law. At times, Congress also required the boards have a mix of both Republican and Democratic appointees.

The Supreme Court unanimously upheld that understanding in a 1935 case called Humphrey’s Executor. The justices said then these officials made judicial-type decisions, and they should be shielded from direct control by the president.

That decision was a defeat for President Franklin Roosevelt who tried to fire a Republican appointee on the Federal Trade Commission.

In recent years, the chief justice and his conservative colleagues have questioned the idea that Congress can shield officials from direct control by the president.

In Monday’s order, the court said it will hear arguments in December on “whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled.”

Justice Elena Kagan has repeatedly dissented in these cases and argued that Congress has the power to make the law and structure the government, not the president.

Joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, she objected on Monday that the court has continued to fire independent officials at Trump’s request.

“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars,” she wrote. “Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”

WASHINGTON — The Supreme Court signaled again this week that it believes the president has the full power to control federal agencies, including by sharply cutting their staffs and their spending.

It’s the latest example of the court’s conservative majority intervening to rule for President Trump and against federal district judges. They have done so in brief orders with no explanation, prompting further criticism from Democrats and progressives.

But Chief Justice John G. Roberts Jr. and his conservative colleagues have made clear over many years that they believe the president’s “executive power” includes controlling agencies and firing officials, even those who were deemed “independent” by Congress.

On Monday, the court issued a one-line order setting aside the decision of a federal judge in Boston who said the Education Department must rehire about 1,400 staffers who had been laid off.

Trump’s attorneys had appealed in early June, arguing the administration was “streamlining” the department while “acknowledging that only Congress can eliminate” it.

Democratic state attorneys had sued to stop the layoffs, arguing Trump was effectively “dismantling” the department, and the judge agreed the layoffs were illegal.

The week before, the conservative majority set aside the decision of a federal judge in San Francisco who blocked Trump’s plans for laying off tens of thousands of employees at more than 20 departments and agencies.

Democrats and progressives condemned the decisions and the majority’s refusal to explain its reasons.

Michael Waldman, president of the Brennan Center, said the justices “have let Trump amass vast new power, and they have done so without putting their names on it. They are proving willing accomplices to a constitutional coup, all without leaving a trace.”

In May, Roberts and the court upheld Trump’s dismissal of Democratic appointees to the National Labor Relations Board and the Merit Systems Protection Board, both of whom had fixed terms set by Congress.

“Because the Constitution vests the executive power in the President, he may remove without cause executive officers who exercise that power on his behalf,” the court said. “Both the NLRB and MSPB exercise considerable executive power.”

The three liberals dissented.

Peter M. Shane, a New York University law professor, has written extensively on the so-called “unitary executive theory” and said it explains why Trump has been winning since he returned to the White House.

“Trump’s use of executive power is not a distortion of the Roberts court’s theory of the presidency,” he said. “It is the court’s theory of the presidency come to life.”

Still pending before the court this week is an appeal from Trump’s lawyers that seeks the firing of three Democratic appointees to the Consumer Product Safety Commission.

The commissioners have seven-year terms, but in May, the Trump White House told the three Democratic appointees they had been “terminated.”

They sued and won a reinstatement order from a federal judge in Baltimore.

The recent rulings from the court have come on emergency appeals at the early stage of a lawsuit. The court’s majority said Trump’s initiatives may go into effect while the litigation continues. But at some point, the justices will have to hear arguments and issue a written ruling on the underlying legal issue.

In ruling for the three officials the CPSC, the judge in Baltimore pointed to the Supreme Court’s 1935 decision which protected the constitutionality of “traditional multi-member independent agencies.”

The court’s opinion in the case of Humphrey’s Executor vs. United States drew a distinction between “purely executive officers” who were under the president’s control and those who served on a board “with quasi-judicial or quasi-legislative functions.”

But that precedent has been endangered in recent years.

Five years ago, Roberts spoke for the court and ruled the director of the Consumer Finance Protection Bureau can be fired by the president, even though Congress had said otherwise.

But since that case did not involve a multi-member board or commission, it did not overrule the 1935 precedent.